ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 19. Argued April 12, 1923; reargued November 23, 1923.­Decided June 8, 1925.

1. Assumed, for the purposes of the ,case, that freedom of speechand of the press are among the peI"8onal rights and liberties pro­tected by the due process clause of the Fourteenth Amendmentfrom impairment by the States. P. 666.

2. Freedom of speech and of the press, as secured by the Constitu­tion, is not an absolute right to speak or publish without responsi­bility whatever·one may choose or an immunity for every possibleuse of language. P. 666.

3. That a State, in the exercise of its police power, may punish thosewho abuse this freedom by utterances inimical to the public wel­ware, tending to corrupt public morals, incite to crime or disturbthe public peace, is not open to question. P. 667.

4. For yet more imperative reasons, a State may punish utterances .endangering the foundations of organized government and threat­ening its overthrow by unlawful means. P. 667.

5. A statute punishing utterances advocating the overthrow oforganized government by force, violence and unlawful means, im­ports a legislative determination that such utterances are soinimical to the general welfare and involve such danger of su!)­stantive evil ,that they may be penalized under the police power;and this determination must be given great weight, and every pre­sumption be indulged in favor of the validity of the statute.P.668.

6. Such utterances present sufficient danger to the public peace andsecurity of the State to bring their punishment cleafly within therange of legislative discretion, even if the effect of a given utterancecan not accurately be foreseen. P. 669.

7. A State can not reasonably be required to defer taking measuresagainst these revolutionary utterances until they lead to actualdisturbances of the peace or imminent danger' of the' State'sdestruction. P. 669.

8. The New York statute punishing those who advocate, advise orteach the duty, necessity or propriety of overthrowing or over­turning organized government by force, violence, or any unlaw­ful means, or who print, publish, or knowingly circulate any book,

653

Counsel for Parties.

GITLOW v. NEW YORK.

652

paper, etc., advocating, advising or teaching the doctrine thatorganized government should be so overthrown, does not penalize .the utterance or publication of abstract doctrine or academic· dis­cussion having no quality of incitement to any concrete action, butdenounces the advocacy of action for accomplishing the overthrowof .organized goveniment by unlawful means, and is constitutionalas applied to a printed" Manifesto" advocating and urging massaction which shall progressively foment industrial disturbantesand, through political mass strikes and revolutionary mass actionoverthrow and destroy organized parliamentary government; eventhough the advocacy was in general terms' and not addressed toparticular iinmediate acts or to particular persons. Pp. 654, 672.

L

9. The statute being constitutional, it may constitutionally be ap- .plied to every utterance-not too trivial to be beneath the noticeof the law-which is of such a character and used with such in­tent and purpose as to bring it within the prohibition of thestatute; and the question whether the specific utterance in question·was likely to bring about the substantive evil aimed at by thestatute, is not open to consideration. Schenck v: United States,249 U. S. 47, explajned. P. 670.

195 App. Div. 773; 234 N. Y., 132, 539, affirmed.

ERROR to a judgment of the Supreme Court of NewYork, affirmed by the Appellate Division thereof and by·the Court of Appeals, sentencing the plaintiff in error forthe crime of criminal. anarchy, (New York Laws, 1909,c. 88), of which he had been convicted by a jury.

Messrs. Walter Nelles and Walter H. Pollak, with whomM essr8. Albert De Silver and Charles B. Ascher ~ere onthe brief, for plaintiff in error.

M eS8T8 W. J. Weatherbee, Deputy Attorney General ofNew York; and John Caldwell Myers, Assistant DistrictAttorney of New York County, with whom Messrs. CarlSherman, AttbrneyGeneral of New York, Claude T.Dawes, Deputy Attorney General of New York, Joab H.

.Banton, District Attorney of New York CountY,and JohnF. o.'Neil, Assistant District AttoriuW:ofNew Y~kComity, were on the briefs, for defendant in error.

268 U.S.Syllabus.

OCTOBER TERM, 1924..

GITLOW v. PEOPLE OF NEW YORK.

652

MR. JUSTICE SANFORD delivered the opinion of theCourt.

Benjamin Gitlow was indicted in the Supreme Court of ,New York, with three others, for the statutory crime ofcriminal.anarchy. New York Penal Laws, §§ 160, 16VHe was separately tried, convicted, and sentenced to im J

. prisonment. . The judgment was affirmed by the Appel­late Division and by the ,Court of Appeals. 195 App.Div. 773; 234 N. Y. 132 and 539. The case is here onwrit of error to the Supreme Court, to which the recordwas remitted. 260 U. S. 703. . .

The contention here is that the statute, by its terms andas applied in this case, is repugnant to the due processclause of 1;he Fourteenth Amendment. Its material pro­visions are:

"§ 160. Crimincil-anarchy defined. Criminal anarchyis the doctrine that organized government should be over­thrown by force or violence, or by assassination of. theexecutive head or of any of. the executive officials of gov­ernment, or by any unlawful means. The advocacy ofsuch doctriny either by word of mouth or writing is afelony., "§ 161. Advocacy of criminal miarchy. Any pl¥'son·who:

"1. By word of~mouth or writing advocates, advises orteaches the duty, necessity or propriety of overthrowingor overturning organized government by force or violence,or by assassination of the executive head or' of 'any ofthe executive officials of government, or by any unlawful·means; or,

"2,' .Prints, publishes, edits, issues or knowingly cir­culates, sells, distributes or publiciy displays any book,paper, document,' or written or printed matter in any

1 Laws di 1909, ch. 88; Consol. Laws, 1909, ch. 40. This statuteyvas criginally enacted in 1902. Laws of 1902, ch. 371.

I,.

655

. Opinion of the Court. .

GITLOW v. NEW YORK.

652

form, containing or advocating, advising or teaching thedoctrine that organized govermpe~t should be oyerthrownby force, violence or any unlawful means . ; . , .

. ./" Is guilty of a· felony and punishable". by imprison-

, 1ent or fine, or both. '. ... The indictment was in two oounts. The first chargedt at the defendant bad advocated, advised and taught

e duty, necessity and propriety of overthrowing andverturning organized government by force, violence andfilawful .means, by certain writings therein set forth

, entitled "The Left Wing Manifesto"; the second thathe had prmted" pub!~ed .and knowingly circulat~d anddistributed a certain paper called "The RevolutlOnatyAge," containing the writings set forth in the first count

~vocating, advising and teachingthe doctrine that .organ­

ized government should be overthrown. by force, Vlolence. d'unlawful means. . .

The following facts were established on the trial by un- \disputed evidence and admissions: The def~n?ant is amember of the Left Wing Section of the SOCialIst Party,a dissenting branch or faotion of that party formed inopposition to its dominant policy of" moderate Soci~.ism."

Membership in both is open to aliens as well as CItIzens.The Left Wing Sectiop was organized nation?-lly at aconference in New York City in June" 1919; attended byninety delegates from twenty different States: The con-.ference elected a National Council, of which the defendantwas a member, and left to it· the adoption of a" Mani­festo." This was published· in The Revolutionary Age,the official organ of the Left Wing. The defendant wason the board of managers of the paper and was its bu~inessmanager. He arranged for·the printing of the paper and.took to the printer the manuscript of. the first issue which.contained the Left Wing Manifesto, and also a Com­munist. ·Program and a Program of the Left Wing thathad been' adopted by the conference. Sixteen thousand

268U.S.Opinion of the Court.

OCTOBER TERM, 1924.654II

I :

condemned the dominant" moderate Socialism" for itsrecognition of the necessity of the democratic parliamen­tary state;. repudiated its policy of introducing Socialismby legislative measures; and advocated, in plain and un­equivocal language; the· necessity of accomplishing the"Communist Revolution" by a rilllitant and" revolu­tionary Socialism", based on " the class struggle" and mo-

governments to prevent a revolution. The Russian Revolution was·the first act of the proletariat against the war and Imperialism. . . .[The] proletariat, urging on the .poorerpeasantry, conquered power.It accomplished a proletarian revolution by means of the Bolshevikpolicy of 'all power to the Soviets,'~rganizing the new transitionalstate of proletarian dictatorship. .. . . Moderate Socialis~ affirmsthat the bourgeois, democratic parliamentary state is the necessarybasis for the introduction of Socialism. . . '. RevolutionarySocialism, on the co~trary, insists that the democratic parliamentarystate can never be the basis- for the introduction of Socialism; thatit is· necessary tQ destroy the parliamentary state,. and construct anew ·state of the organized producers, which will deprive the bour­geoisie of political power, and function as aTevolutionary dictatorship

, of the proletariat. . . . Revolutionary Socialism alone is capableof mobilizing the proletariat for Socialism, for the conquest of the.power of the state, by means of revolutionary mass action and .proletarian dictatorship. . . . Imperialism is dominant ~ theUnited States, which is now a world power. . '. . The war hasaggrandized American Capitalism, instead. of weakening it as inEurope. . . . These conditions modify our immediate task, butdo not alter its general character;. this is not the moment of revolu­tion but it is the moment of revolutionary struggle. ..... .Strikes., . '.

are developing which verge on revolutionary action, and in ",hichthe.: suggestion of proletarian dictatorship is apparent, the striker-work­

ers trying to usurp f~tictions of municipal government, as in Seattle ... ·and Winnipeg.> The mass struggle of the· proletariat is coming into. behlg.·. . .... TheSe strikes will constitute the determining feature

of proletarian action in the days to come. Revolutionary Socialism.. must uile·thesemass industnal,revolts to broaden· the strike, to make

it· general and militant; use the strike for political objectives,and,finally, develop the mass political strike against Capitalism. and the

. state.. Revolutionary Socialism must base itself. on the mass struggles5\')621·-25-----42'

656 OCTOBER TERM, 1924.

Opinion of the Court. 268 U. S. 652

GITLOW v. NEW YORK.

Opinion of the Court.

657

bilizing the" power of the proletariat in action," throughmass industrial revolts developing' into mass politicalstrikes and "revolutic;mary mass action ", for the purpose

_of conquering and destroying the parliamentary state and'establishing in its place, through a "revolutionary dic­tatorship of the proletariat", -the system of CommunistSocialism. .The then recent strikes in Seattle and Win­nipeg 3 were cited as instances of a development alreadyverging on r~volutionary action and' suggestive of prole- .

of the proletariat, engage directly in these struggles while emphasiz­iI\g .the revolutionary purposes of Socialism and _the proletarianmovement. The mass strikes of the American proletariat p~ovide

the material basis out of which to develop the concepts and actionof revolutionar'y Socialism. . . . Our task . . . is to articu­late and organize the mass of the unorganized industrial proletariat,which constitutes the basis for a militant SocialiSm. The strugglefor the revolutionary industrial unionism of the proletariat becomesan indispensable phase of revolutionary Socialism, on the basis ofwhich to broaden and deepen the action of the ID.ilitant proletariat,developing reserves for the'ultimate conquest of power. . . .Revolutionary. Socialism adheres to the class struggle because throughthe class struggle alone-the mass struggle-c;:tn the industrialproletari~t, sec,ure ~edi~te concessions and finally co~quer powerby orgamzrng the mdustnal government of the working class. The.class struggle is a political struggle . .,:. in the sense that itsobjeQtive is political-the overthrow of the political organizatio~

upon whic~ capitalistic exploitation 'depends, and the introduGtionof a new,Bocial ~ystem, The direct objective is the conquest· by theproletariat of the power of the state. Revolutionary Socialism doesnot propose to ' capture' the bourgeois parliamentary state,but toconquer and destroy it. Revolutionary Socialism, accordingly, repu­diates the policy' of introducing Socialism by means of legislativemeasures on the basis of the bourgeois state. . . . It proposes toconquer by means of political action . . . in the revolutionary

. (Footnote II continued on follOWing pages,)

3 There was testimony at the trial that" there was an extended'strike at Winnipeg commencing May 15, 1919, during which the pro­duction and, supply .of necessities, transportation, postal andtelegraphic. communication and fire and saJ;litary protection weresuspended or seriously curtailed."

tarian dictatorship, in which the strike-workers were"trying to usurp the functions of municipal govem­ment "; and revolutionary Socialism, it was urged, must.use these mass industrial revolts to broaden the strike,make it -general and militant, and develop it into masspolitical strikes and revolutionary mass ,action 'for the an­nihilation of the parliamentary state.

At the outset of the trial the defendant's' counselobjected to the introduction of any evidence under the

Marxian sense, which does not simply mean parliamentarism, but the_class action of the proletariat in any form having as its objective

the conquest of the power of the state. . . . Parliamentary actionwhich emphasizes the implacable character of the class struggle is anindispensable means of agitation. . . . But parliamentarism can-

. not conquer the power of the state for the proletariat. . . . It. isaccomplished, not by th~ legislative representatives of the proletariat,but 'by the mass power of the proletariat in action. The supremepower of the proletariat inheres in the political 1'I'U1SS strike, in usingthe industrIal mass power of the proletariat for politicaf'objectives.Revolutiomiry .Socialism, accordingly" recognizes that the supreme-form of proletarian political' action is the political mass strike,. . . The power of the proletariat lies fundamentally in its con­trol of the industrial process. The mobilization of this control inaction against the bourgeoi~ state and Capitalism means the end ofCapitalism, the initial form of the revolutionary mass action that will.conquer the power of the state. . . . The revolution ~tarts withstrikes of prote!3t, developing into mass political strikes and then intorevolutionary mass action for the conquest of the power of the state.Mass action becomes politic:11 in purpose while extra-parliamentaryin form; it ,is equally a process of revolution and the revolu;tion itself

,in operation. The final objet.:tive of mass action is the conquest ofthe power of the state, the annihilation of the bourgeois parliamentarystate and the introduction of the transition proletarian state, func­tioning as a revoh~tionary dictatorship of the' proletariat. . .'.The bourgeois parliamentary state is the organ of the bourgeoisie for'the coercion of the-proletariat. The revolutionary prQ1etariat must,accordingly, destroy this state. . . . It is therefore .-iJecessary thatthe proletariat organize its own state for the coercion and suppression

. of the bourgeoisie. . • ; Proletarian dict,atorship is a recognitionof the necessity for a revolutionary state to coerce and suppress the

659

Opinion of the Court.

GITLOW v. NEW YORK.

652268U.S.Opinion of the Court.\, ,

OCTOBER TERM, 1924.-t• 658

660 OCTOBER TERM, 1924.

Opinion of the Court. 268U.S. 652

GITWW v. NEW YORK.

Opinion' of the Court.

661

indictment on the grounds that, as a matter of law, theManifesto" is not in contravention of the statute," andthat" the statute is in contravention of" the due processclause of the Fourteenth Amendment. This objectionwas denied. They also moved, at the close of the evi­dence, to dismiss the indictment and direct 3n acquittal" on the grounds stated in the first objectioJl to evidence ",

bourgeoisie; it is equally a recognition of the fact that. in the Com- 'munist reconstruction of society, the proletariat as a class, alonecounts. . . . The old machinery of the state cannot be used bythe revolutionary proletariat. It must'be destroyed. The proletariatcreates a new state, based directly upon the industrially organizedproducers, upon the industrial unions or Soviets, or a combination ofboth. It is this state/ alone, functioning as a dictatorship of theproletariat, that can realize Socialism. . . . While the dictator­ship of the proletariat performs its negative task of crushing the oldorder, it performs the positive task of constructing the new: Togetherwith the government of the proletarian dictatorship, there is developeda new' government,' which is no longer government in the old sense,since it concerns itself with the management of production and notwith the government of persons. Out of workers' control of industry,introduced by the proletarian dictatorship. there develops the com­plete structure of Communist Socialism,-industrial self-gevernmentof the communistically organized producers. When this structure iscompleted, which implies the complete expropriation of the bourgeoisieeconomically and politically, the dictatorship of the proletariat ends,in its place coming the full and free social and individual autonomyof the Communist order. . . . It is not a problem of immediaterevolution. It is a problem of the immediate revolutionary struggle.The revolutionary epoch of,the final struggle against Capitalism maylast for years and tens of years; but the Communist Internationaloffers a policy and program immediate and ultimate in scope, thatprovides for the immediate class struggle against Capitalism, in itsrevolutionary implications, and for the final act of the conquest ofpower. The old ordl;lr is in decay. Civilization is in collapse. Theproletarian revolution and the Communist reconstruction of society­the struggle for these-is now indispenSable. This is the messageof the Communist International to the workers of the world. The

.Communist Internationitl calls the 'proletariat of the world to the final 'struggle! " -

/'

and again on the grounds that "the indictment does not,charge an offense ." and the evidence "doe~not show anoffense." These motions were also denied. '

The court, among, other things, charged the jury, insubstance, that they must determine what was the intent,purpose and fair meaning of the Manifesto; that its wordsmust be taken in their ordinary meaning, as they wouldbe understood by people whom it might reach; that amete statement or analysis oCsocial and economic factsand historical incidents, in the nature of an essay, accom-'panied by prophecy as to the future course of events, butwith no teaching, advice or advocacy of action, would notconstitute the advocacy, advice or teaching of a doctrinefor the overthrow of government within the meaning ofthe statute; that a mere statement that unlawful actsmight accomplish such a purpose would be insufficient,unless there was a teaching, advising and advocacy ofemploying such unlawful acts for the purpoee of over­throwing government; and that if the jury had a reason­able doubt that the Manifesto did teach, advocate oradvise the duty, necessity or propriety of using unlawfulmeans for the overthrowing of organized government, thedefendant was entitled' to an acquittal.' ,, The defendant's counsel submitted two requ~ts to

charge which- embodied in sub~tance the statement thatto constitute criminal anarchy within the mea~ing of thestatute it. was necessary that the language used or pub­lished should advocate, teach or advise the duty, necessityor propriety of doing "some definite or immediate actor acts" of force, violence or unlawfulness directed towardth.e overthrowing of organized government. The~ weredenied further than had been charged; Two other re­quests to charge embodied in substance the statementthat to constitute guilt the language used or publishedmust be "reasonably and ordinarily calculated to incitecertain persons" to acts of force, violence or unlawfulness,

I'II

with the object of overthrowing organized government.These were also denied. l , .

The Appellate Division, after ~tting forth extractsfrom the Manifesto and referring to the Left Wing andCommunist Programs published in the same isSue of theRevolutionary Age, said: 4 "It is perfectly plain' that theplan and purpose advocated.. . . ,contemplate theoverthrow and, destruction of the governments of theUnited States and of all the States, not by the free actionof the majority of the. people' through the ballot box inelecting representatives to authorize a change of govern­m,ent by amending or changing the Constitution, . "but by immediately organizing the industrial proletariatinto militant Socialist unions and. at the earliest oppor­tunity through mass strike arid force and .violence, ifnecessary, compelling the government to cease to func­tion, and then through a proletarian d~ctatorship, takingcharge of and apprqpriating -all property and administer­ing it and governing'through such dictatorship until suchtime as the proletariat is permitted to administer andgovern it. . . . The articles in question are .not adiscussion of ideas' and theories. They advocate a· doc­trine deliberately determined upon and planned for mili­tantly disseminating a propaganda advocating that it isthe. duty and neceSsity of the proletariat engaged inindustrial pursuits' to organize to such .an extent that, bymassed strike, the wheels of government may ultimatelybe stopped and the government overthrown'. . .'.'

The Court of Appeals held tha,t the Manifesto " advo­cated the overthrow of this government' by violence, orby unlawful means." ~ in one o( the opinions represent-

4195 App. Div. 773, 782, 790. . '. .~ Five judges, constituting the majority of the court) agreed in this

view. 234 N. Y. i32, 138. And the two ,judges, constituting theminority-who dissented solely ona question as to the construction,of the statute which is not here involved-said in ~eference to' the

Manifesto: "Revolution for the purpose of overthrowing the presentform and the established political system of the United States gov­ernment by direct means rather than by constitutional means istherein clearly advocated and defended . . ." p. 154.

6 Pages 141, 142.'/ Pages 149, 150.8 Exceptions to all of these rulings had been duly taken.

1. I

I •

663

Opinion of the Court.

GITLQW.JJ. NEW YORK.

652

ing the views of a majority of the court,6 it was said:"It will be seen • • . that this defendant throughthe manifesto'. • . advocated the' destruction, of thestate and the establishment of the dictatorship of theproletariat; .. .' To advocate ; . . the commis~

sion of this conspiracy or aCtion by mass strike wherebygovernment is crippled, the administration of justiceparalyzed, and the health, morals and welfare of a com­munityendangered, and this for the purpose of bringingabout a revolution in the state, is to advocate the over­throw of organized government by unlawful means." Inthe oth~r '/ it was said: "As we read this manifesto . . .we feel entirely. clear that the jury were justified inrejecting the view that it was a mere academic. and harm­less discussi~n of the advantages of communism andadvanced socialism" and" in regarding it as a justifica­tion and advocacy of action by one class which woulddestroy the rights of all other classes and overthro~ thestate itself by use of revolutionary mass strikes. It istrue that there IS no advocacy in specific terms of theuse of. . force or violence. •There was no need tobe. Some things ar~ so commonly incident to others thatthey do not need to be mentioned when the underlyingpurpose is described."

And both the Appellate Division and the Court ofAppeals held the statute constitutional.

The specification of the e!!ors relied on relates solelyto the specific rulings of the trial court in the mattershereinbefore set OUt,8 The correctness of the verdict is not

268U.S.Opinion of the Court.

OCTOBER TERM, 1924.662

'j

questioned, as the case was submitted to the jury. Thesole contention here is, essentially, that as there was noevidence of any concrete result flowing from the publica­tion of the Manifesto or-of oircumstances showing thelikelihood of such result, the statute as construed and ap­plied by the trial court penalizes the mere utterance, assuch, of "doctrine" having no quality of incitement,without regard either to the circumstances of its utter­ance or to the likelihopd of unlawful sequences; and that,as the exercise of the right of free expression with relationto government is only punishable "in circumstances in­volving likelihood of substantive evil," the statute con­travenes the due process clause of the Fourteenth Amend­ment. The a,rgument in support of this contention restsprimarily upon the following propositions: 1st, Tha.t the"liberty" protected by the Fourteenth Amendment in­cludes the liberty of speech and of the press; and 2nd,That while liberty of expression " is not absolute," it maybe restrained" only in circumstances where its exercisebears .a causal relation with some substantive evil, con­summated, attempted or likely," and as the statute" takesno account of circumstances," it unduly restrains thisliberty and is therefore unconstitutional~

The precise question presented, and the only questionwhich we can consider under this writ of error, then is,whether the statute, as construed and applied in this caseby the state courts, deprived the defendant of his libertyof expression in violation of-the due process _clause of theFourteenth Amendment.

The statute does not penalize the utterance or publica­tion of abstract" doctrine" or academic discussion having

- no quality of incitement to any concrete action. It is notaimed against mere historical or philosophical essays. Itdoes not restrain the advocacy of changes in the form ofgovernment by constitutional and lawful means. What,it prohibits is language advocating, advising or teaching

the overthrow of organized government by unlawful,~eans. .T~ese words imply urging to action. Advocacy'IS defined In the Century Dictionary as: -" 1. The act ofpleading for, supporting, or recommending· activeespousal." It is not the abst~-.act "doctrine" 'of over­throwing organizedgovernment by unlawful means which ­is d~nounced by the statute, but the advocacy of actionfor the accomplishment of that purpose. It w.as so con­strued and applied ,by the trial judge, who specificallycharged the jury that: "A mere grouping of historicalevents and a prophetic deduction from them would neitherconstitute advocacy, advice or teaching of a doctrine for'the overtl,lrow of government by force, violence or unlaw.:"ful means. [And] if it were a mere essay on the subject;as suggested by counsel, ,based upon deductions from al­lege-d histori~l e.vents, -with no teaching, advice or ad"-­vocacy of actIon, It would not constitute a violation of the_statute. _. . .".

The Manifesto, plainly, is neither the statement ofab-'s~ract doctrine nor, as suggested by counsel, mere predic-:tIo~ that. industrial disturbances and revolutionary mass

. strikes w~ r~sult spontane~usly in ,an irievitable processof evolutIon III the econoihic system. It advocates andurge~ in fervent language mass action which shall pro~gre~s~vely fomen.t industrial disturbances and through

, politIcal mass strikes .and revolqtionary mass action over­throw and destroy organized parliamentary government.It concludes with a call to action in th~se words:- "Theproletariat revolution and the Communist reconstructionof society-the struggle for these-is now ind~spensable. '. -: _. The Communist Intern.ational calls'the'~p'rol~-

- taflat of the world to the final struggle F" i, Thisil~hot thee~1>ression of philosophical abstraction, -tl:u(~ere predic­

. ~10~ of future events; it is' the l~guage of directInCItement. /' _. __.. - _- -

The means advocated for bringing about the destructionof organized parliamentary government, namely, mass in-

664 OCTOBER TERM, -1924.

OpiniC'n of the Court. 268U.S.652

GITLOW v. NEW YORK. -

Opinion of the Court.

665

" 9 Compare Patterson v .. Coldrado, 205 U. S. 454, 462; Twining v.New Jersey, 211 U. S. 78,108; Coppage v. Kansas, 236,.U. S. 1, 17;.Fox v. Washington, 236 U. S. 273, 276; Schaefer v. United States, 251U. S. 466, 474; Gill)ert v. Minnesota, ~ U. S. 325, 338; Meyer v.N ebra.~ka, 262 U. S. 390, 399; 2 Story On the Constitution, 5th Ed., •§ 1950, p. 698.

dustriaJ revolts usurping the functions of municipal gov­ernment, political mass strikes directed against the p.arlia-,mentary state, and revolutionary mass action for its finaldestruction, necessarily imply the use of force and violence,and in their essential nature are inherently unlawful in a,constitutional government of law ,and order. That the jurywere warranted in finding that the Manifesto advocatednot merely the abstract doctrine of overthrowing organ­ized government by force, ,violence and unlawful means,

-but action to that end, is' clear. 'For present purposes we may and do assume that

fre~dom of speech and of the press-which are protectedby the First Amendment from abridgment by Congres&­are among the fund.amental personal rights and" liber­ties" protected by the due process clause of the Four-

l. teenth Amendment from impairment b! the State~. We'-do not regard the incidental statement In Prudenttal Ins.

Co. v. Cheek, 259 U. S.530, 543, that the FourteenthAmendment inlposes no restrictions on the States concern­ing freedom of speech, as determinative of this question.9

It is a fundamental principle, long established, that thefreedom of speech and of the press which i~ secured bythe Constitution, does not confer an absolute right tospeak or publish, without responsibility, whatever onemay choose, or an unrestricted and unbridled license thatgives immunity for every possible use of languag~and

prevents the punishment of t4<;>se who abuse this freedom. '2 Story on the Constitution, 5th ed., § 1580, p. 634;Robertson v. Baldwin, 165 U. S. 275, 281; Patterson v.Colorado, 205 U. S. 454, 462; Fox v. Washington, 236

, I

667

Opinion of the Court.

GITLOW v. :NEW YORK., .

652

U. S. 273, 276; Schenck v. United States~ 249 U;S. 47, 52; ,Frohwerk v. United States, 249 U. S.204, 206; Debsv.~United,States, 249 U. S. 211" 213; -Schaefer v. IUnitedStates, 251 U. 8,. 466, 474; Gilbert v. Minnesota, 254U. S. 325, 332; Warren'v. United States" (C. C. A:) 183Fed. 718, 721. Reasonably limited, i~ was said by Storyin the passage cited, -this freedom is an inestimable privi­lege in a free government; without such limitation, it,might becoJ!le the' scourge of the republic.

-That a State in the exercise of its police power maypunish those who abuse this freedom by utterances inim~ical to the public welfare, tending to corrupt publicmorals, incite to crime, or disturb the public peace, is notopen tp question. ' Robertson v. Baldwin, supra, p. 281;Patterson v. Colorado, supra, p. 4&2; Fox v.Washington,supra, p. 277; Gilbert v. 1\.finnesota, supra, p. 339; ,Peopl~v.Most, @B-,.Y. 423,,4;31; State v. Holm, 139 Minn.267, 275; State v. Hennessy, 114 Wash. 351, 359; Sta,tev. Boyd, 86 N. J. L. 75, 79;, State v. McKee, 73 Conn.18, 27. Thus it was held by this Court in the Fox Case;that a State may punish publications advocating andencouraging a breaph of its criminal laws; ,and, in theGilbert Case, thata $tate may punish~utterancesteaching

,or advocating that its citizens should not assist the UnitedStates in pfosecuting or carrying- on war with its publicenemies., , , ',_

And, for yet more imperative reasons,' a State ,may, punish utteranCes endangering the foundations of organ-'ized government and threatening its overthrow by unlaw- ,

,.ful means. These itnperil its' own existence las a con:-,stitutionaJ State. Freedom of speech and press;' saiq ,Story (supra) does not protect disturbances to the publlcpeace or the attempt to subvert the government. It does''not protect publications or teachings which tend' to' subvert or imperil the government or to impede or hinder i "in the performance of its governmental duties. ' S~ate v)

268U.S.Opinion of the Court.

OCTOBER TERM, 1924.666

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Holm, supra, p. 275. It does not protect publicationsprompting the overthrow of government by force; thepunishment of those who publish articles which tend todestroy organized society being essential to the security offreedom and the stability of the State. . People v. Most,supra,pp. 431, 432.. And a State may penalize utteranceswhich openly advocate the overthrow of' the representa­tive and constitutional form of government of the UnitedStates and the several States, by violence or other unlaw­ful means. People v. Lloyd, 304 Ill. 23, 34. See also,State v. Tachin, 92 N. J. L. 269, 274; and People v.Steelik, 187 Cal. 361, 375. In short this freedom doesnot deprive a State of the primary and essential right ofself preservation; which, so long as human governmentsendure, they cannot be denied. Turner v. Williams, 194U. S. 279, 294. In Toledo. Newspape1' Co. v.. UnitedStates, 247 U. S. 402, 419, it was said: "The safeguardingand fructification ·of free and constitutional institutionsis the very basis and mainstay upon which' the freedomof the press rests, and that freedom, therefore, does notan~ cannot be held to include the right virtually, tog~stroy such institutions.". By enacting the present statute the State has deter­mined, through its legislative body, that utterancesadvo­eating the overthrow of organized government by force,violence and unlawful means, are so inimical to the gen- .era! welfare and involve such danger of substantive evilthat they' may be penalized in the exercise of its polleepower. That determination must be given great weight.Every presumption is to be indulged in favor of thevalidity of the statute. Mugler v. Kansas, 123 U. S; 623;661. And the case is to be considered "in the light ofthe principle that the State is primarily the judge of regu­lat~ons required in the interest of public safety and wel­fare; " and that its police" statutes may only be declaredunconstitutional where they are arbitrary or. unreason-

able attempts to exercise authority vested in the Statein the public interest.'" Great Northern Ry. v. ClaraCity, 246 U. S. 434, 439. That utterances inciting to theoverthrow of organized government by unlawful means,present a sufficient danger of .substantive evil to bringtheir punishment within tr.e range of .legislative discre­~ion, is clear. Such utterances, by their very natu~e,Involve danger to the public peace and to the security ofthe State. They threaten breaches of the peMe andultimate revolution. And the irr:mediate danger is nonethe less real and substantial, 'because the effect of a givenutterance cannot be accurately foreseen. The State can­not reasonably be required to measure th~ danger fromevery such utterance in the nice balance of a jeweler'sscale. A single revolutionary spark may kindle a firethat, smouldering for a time, may burst into a sweepingaild destructive conflagration. It cannot be said that theState is acting arbitrarily or unreasonably when in the ex­ercise of its judgment as to the measures necessary to pro­tect the public peace and safety, it seeks to extinguish thespark without waiting until it has enkindled the flame orblazed into the conflagration. It cannot reasonably be re­quired to.defer the adoption of measures for its own peaceand safety until the revolutionary utterances lead to actualdisturbances. of the public peace or imminent and iin­m.edi~te da~ge~ of its own destruction; but it may, iIi the~~e~CIs: o~~ts Judgment, suppress the threatened danger'In: Its InCIpIency. In People v. Lloyd, supra, p.35,- itwas ap~ly said: "Manifestly, the legislature has authorityto forbId the advocacy of a doctrine designed and intended!o overthrow the government without waitigg un~~rtbereIS a present~nd imminent danger of the ·fiuc.cess-of. theplan advocated. If the State were compelled to wait~ntil the apprehended danger beca,me certain, then itsfIght to. protect itself would come into being simultane:"ously WIth the overthrow of the government, when there'

668 OCTOBER TERM, 1924.

Opinion of the Court. 268U.S.652

GITLOW v. NEW YORK.

Opinion of the Court.

669

10 This reference is to so much of the decision as relates to the con­viction under the third count. \ In considering the effect of the de­cisions under the Espionage Act of 1917 and the amendment of 1918,the distinction must be kept in mind between indictments under thoseprovisions which specifically punish certain utterances, and thosewhich merely punish specified acts in general terms, without specific 'reference to the use of language..

671

Opinion of the Court.

GITLOW v. NEW YORK.

652

used by the defendant for the purpose of bringing aboutthe prohibited results. There, if it be contended that thestatute cannot be applied to the language used by the de­fendant because of its protection by the freedom of speechor press, it must necessarily be found, as an originalques­tion, without any previous determination by the legisla­tive body, whether the specific language used involvedsuch likelihood of bringing about the substantive evil asto deprive it of the constitutional protection. In suchcases it has been held that the general provisions of thestatute may ,be constitutionally applied to the specificutterance of the defendant if its natural tendency andprobable effect was to' bring about the substantive evilwhich the legislative body might prevent. Schenck v.United States, supra, p. 51; Debs v. United States, supra.,pp. 215, 216. And the general statement in the SchenckCase (p. 52) that the" question in every case is whetherthe words are used in such circumstances and are of sucha nature as to· create a clear and present danger that theywill bring about the substantive evils,"-upon which greatreliance is placed in the defendant's argument-was mani­festly intended, as shown by the context, to apply only inCaBeS of this class, and has no application to those like thepresent, where the legislative body itself haB previouslydetermined the danger of substantive evil arising fromutterances of a specified character., The defendant's brief does not separately discuss anyof the rulings of the trial court. It is only necessary tosay that, applying the general rules already stated, we findthat none of them involved any invaBion of the constitu­tional rights of the defendant.· It was not necessary,

, within the meaning of the statute, that the defendantshould have advocated" some definite or immediate actor acts" of force, violence or unlawfulness. It was suffi­cient if such acts were advocated in general tenns; andit WaB not essential that their immediate execution should.

268U.S.Opinion of the' (::om.

OCTOBER TERM, 1924.670

would be neither' prosecuting officers nor courts for theenf~rcementof the law:' .

We cannot hold that the present statute is an arbitraryor unreaBonable exercise of the police power of the Stateunwarrantably. infringing the freedom of speech or press;and we inust and dosu~tain its constitutIonality.

. This being so it may be applied to every utterance­not too trivial to be beneath the notice of th~ law-whichis of such a character and used with such intent and pur­pose as to bring it within the prohibition of the statute.This principle i~ illustrated in Fox v. Washington, supra, ~

p. 277; Abrams v. United States, 250U. S. 616, 624;Schaefer- v. United States, supra, pp. 479, 480; Pierce v.

~ United States, 252 U. S. 239, 250, 251 ;10 and Gilbert v.Minnesota, 811,pra, p. 333. In other words, wh~n the legis­lative body has determined generally, in the constitu­tional exercise of its discretion

7, that utterances of a cer­

tain kind involve such danger of substantive evil that theymay be punished, the question whether any specific utter­ance coming within the prohibited class is likely, in andof itself, to bring aboutthe eubstantiveevil, is not open to

. consideration. It is sufficient that the statute itself be. constitutional and that the use of the language comes

within its prohibition. -,. - _.It is clear that the question in such cases is entirely

different from that involved. in those cases where thestatute merely prohibits certain acts invohring the dangerof substantive evil, without any reference to language it­self, and it is sought to apply its provisions to language

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have been -advocated. Nor was it necessary that thelanguage should have been "reasonably and ordinarilycalcufated to incite certain persons" to acts of force; vio­lence or unlawfulp.ess. The advocacy need not be ad­dressed to specific persons. Thus, the publication andcirculation of a newspaper article may be an encourage­ment' or endeavor to persuade to murder, .although notaddressed to any person in particular. Queen v. Most,L. R., 7 Q. B. D. 244.

We need not enter upon a consideration of the Englishcommon law rule of seditious libel or the Federal SeditionAct of 1798, to which reference is made in the defendant's ,brief. These are so unlike the present statute, that we _think the decisions under them cast no helpful light uponthe questions .here.

And finding, for the reasons stated, that the statute isnot in itself unconstitutional, and that it has not beenapplied in the present case in derogation of any constitu­tioIial right, the judgment of the Cour1f of Appeals is

Affirmed.MR. JUSTICE HOLMES, dissenting.

MR. JUSTICE' BRA:~n)EIS and I are of opinion that thisjudgment should be reversed. The general principle of freespeech, it -seems to me, must be taken to be included inthe Fourteenth Amendment, in view of the scope that hasbeen given to the word 'liberty' as there used, .althoughpe~haps it may be accepted with a somewhat larger lati­tude of interpr~tation than is allowed to Congress by thesweeping language 'that governs or ought to govern thelaws of the United States. Iflam right, then I thinkthat the criterion sanctioned by the full Court in Schenckv. United States, 249 U. S. 47, 52, applies. "The questionin every case is whether the words used are used in such-circumstances and are of such a nature as to create a clearand present danger that they will bring about the subStan..,

tive evils that [the State] has a right to prevent." It istrue that in my opinion this criterion was departed fromin Abrams v. United States, 250 U. S. 616, but the con-

- victions that I expressed in that case are too deep for it tobe possible for me as yet to believe that it and Schaefer v.United States, 251U. S. 466, have settled the law. If whatI think the correct test is applied, it is manifest that therewas no present danger of an attempt to overthrow thegovernment by force on the part of the admittedly smallminority who shared the defendant's views. It is said thatthis manifesto was more than a theory, that it was an in­citement. Every idea is an incitement. It offers itselffor belief and if believed it is acted on unless some otherbelief outweighs it or some failure of energy stifles themovement at its birth. The only difference between the

-expression of an opinion and an incitement in the nar­rower sense is the speaker's enthusiasm for the result.Eloquence may set fire to reason. But whatever may bethought of the redundant discourse before us it had nochance of starting a present conflagration. If in the

- long run the beliefs expressed .in proletarian dictatorshipare destined to be accepted by the dominant forces of thecommunity, the only meaning of free speech is that theyshould be given their chance and have their way.

If the publication of this document h.ad been laid as anattempt to induce an uprising against government at once

. and not at some indefinite time in the future it wouldhave presented a different question. The object wouldhave been one with which the law might deal, subject tothe doubt whether there was any danger that the publica­tion could produce any result, or in other words, whetherit was not futile and too remote from possible con­sequences. But the indictment alleges the publicationand nothing more.

673GITLOW v. NEW YORK.

HOLMES and BRANDEIS, JJ., dissenting.652268 U.S.

OCTOBER TERM, 1924.

HOLMES and BRANDEIS, J J., dissenting.

672

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